Political musings. Commentary on random internet stuff. General provocation to debate.

Tuesday, June 28, 2011

Speech and Money Followup: Action-Effect distinctions lost on Supreme Court

Basically, in Arizona Free Enterprise Club's Freedome Club PAC v. Bennett the Supreme Court majority opinion makes a truly disturbing error. They argue that the right to free speech is not one of action (you can say what you want) but rather efficacy (actions limiting the efficacy of your speech towards its goals are apparently problematic). In other words, not by censorship, but merely by providing content-neutral funding for competing opinions, the government can be considered to be impeding free speech. Elena Kagan hits the nail on the head in her dissenting opinion (second half of the linked opinion). Here's her most terse description of the perceived problem.

According to the Court, the
special problem here lies in Arizona’s matching funds
mechanism, which the majority claims imposes a “sub-
stantia[l] burde[n]” on a privately funded candidate’s
speech. Ante, at 2. Sometimes, the majority suggests that
this “burden” lies in the way the mechanism “ ‘diminish[es]
the effectiveness’ ” of the privately funded candidate’s
expression by enabling his opponent to respond. Ante, at
10 (quoting Davis v. Federal Election Comm’n, 554 U. S.
724, 736 (2008)); see ante, at 21–22. At other times, the
majority indicates that the “burden” resides in the deter-
rent effect of the mechanism: The privately funded candi-
date “might not spend money” because doing so will trig-
ger matching funds. Ante, at 20. Either way, the majority
is wrong to see a substantial burden on expression.

Just a quick gloss: the worry is that the possibility that their opponents might be able to say something about their speech is what the Majority worries will discourage that speech. And here is her most effective analysis of the error of the Majority Opinion.

Most important, and as just suggested, the very notion
that additional speech constitutes a “burden” is odd and
unsettling. Here is a simple fact: Arizona imposes nothing
remotely resembling a coercive penalty on privately
funded candidates. The State does not jail them, fine
them, or subject them to any kind of lesser disability. (So
the majority’s analogies to a fine on speech, ante, at 19, 28,
are inapposite.) The only “burden” in this case comes from
the grant of a subsidy to another person, and the opportu-
nity that subsidy allows for responsive speech. But that
means the majority cannot get out from under our subsidy
precedents. Once again: We have never, not once, under-
stood a viewpoint-neutral subsidy given to one speaker to
constitute a First Amendment burden on another. (And
that is so even when the subsidy is not open to all, as it is
here.) Yet in this case, the majority says that the prospect
of more speech—responsive speech, competitive speech,
the kind of speech that drives public debate—counts as a
constitutional injury. That concept, for all the reasons
previously given, is “wholly foreign to the First Amend-
ment.” Buckley, 424 U. S., at 49.